Urgent Report - Skelton v. WCAB: No Temporary Disability While Attending Medical Treatment Appointments

A California Court of Appeal ruling this month held that an industrially injured employee may not receive temporary disability benefits when he or she takes time off from work to attend medical treatment appointments.

BACKGROUND

Labor Code 4600(e)(1) states, "When at the request of the employer, the employer’s insurer, the administrative director, the appeals board, or a workers’ compensation administrative law judge, the employee submits to examination by a physician, he or she shall be entitled to receive, in addition to all other benefits herein provided, ... one day of temporary disability indemnity for each day of wages lost in submitting to the examination."

In Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal. 4th 1281, 1295. the California Supreme Court explained that "this benefit is in the nature of a medical-legal benefit, reimbursing the employee for his time when requested to submit to a medical examination to resolve a compensation claim." So, although § 4600 generally relates to medical treatment, the Supreme Court interpreted the benefit in § 4600(e)(1) as relating to medical-legal expenses.

In that case, the Supreme Court held that an employee was not entitled to temporary disability benefits while pursuing medical treatment for a permanent and stationary injury. It also held that the employer did not discriminate against the employee within the meaning of § 132a by requiring the employee to use sick leave and vacation leave when he was away from the workplace seeking treatment for his permanent injury.

The Supreme Court, however, did not specifically address whether an employee was entitled to temporary disability benefits for missing work to attend medical appointments before permanent and stationary status. Although the WCAB confronted the issue in one case,^[1] for 16 years after Lauher there was no binding authority.

Then, on Sept. 5, 2019, the 6th District Court of Appeal in Skelton v. WCAB ^[2] held that an employee was not entitled to temporary disability indemnity arising from time off work to attend medical treatment appointments.

FACTS OF THE CASE

In Skelton, an employee filed claims for two separate injuries. She was placed on modified work and continued working after each injury. Her work hours were not flexible, and she could not visit her doctors on weekends. She initially used her sick and vacation leave, but eventually her paycheck was reduced for missed time at work.

The employee sought reimbursement for her wage loss to attend medical treatment and medical-legal evaluations. The WCAB concluded that pursuant to § 4600(e)(1) and Lauher, the employee was entitled to one day of temporary disability indemnity for each day of wage loss in submitting to a medical-legal evaluation, but not for a medical treatment appointment. This decision was upheld by the appellate court.

THE COURT'S DECISION

Citing other cases, the 6th District Court of Appeal explained, "The purpose of temporary disability indemnity is to provide interim wage replacement assistance to an injured worker during the period of time he or she is healing and incapable of working" (emphasis added). In addition, "The employer’s obligation to pay temporary disability benefits is tied to the employee’s actual incapacity to perform the tasks usually encountered in one’s employment and the wage loss resulting therefrom" (emphasis added). In that case, the court found that the employee returned to work full time after her injuries and subsequently took time off from work because she could not schedule medical treatment during nonwork hours. It found that neither the employee's time off from work nor her wage loss were due to an incapacity to work. Instead, they were due to scheduling issues and her employer’s leave policy. The court concluded that because the employee's injuries did not render her incapable of working during the time she took off from work and suffered wage loss, she was not entitled to temporary disability indemnity for that time off or wage loss.

The case originally was issued as an unpublished decision on Sept. 5, 2019, but on Sept. 16, 2019, the court ordered publication of the case.

ANALYSIS OF THE DECISION

It is well-established that employers are generally liable for any subsequent injuries that are a compensable consequence of the original industrial injury. As a result, injured employees often feel that employers should be liable for any and all consequences of an industrial injury.

In Lauher, however, the Supreme Court held that employees were not entitled to temporary disability benefits or wage loss while pursuing medical treatment after becoming permanent and stationary. Now, in Skelton, the 6th District Court of Appeal has held that employees are not entitled to those benefits while pursuing medical treatment after returning to work, even if they are not yet permanent and stationary.

Both Lauher and Skelton explained that the workers' compensation system does not provide a make-whole remedy, and that in exchange for the blanket coverage of compensation without regard to fault, the employee bears some of the burden. So, employees aren't entitled to any and all loses as a result of an industrial injury –– they are expected to suffer some loss as a result of an industrial injury.

Accordingly, employees are not entitled to schedule medical treatment appointments for an industrial injury during working hours. If an appointment is scheduled during that time, an employer does not necessarily violate the Labor Code by requiring an industrially injured employee to use sick and vacation leave to attend the appointment. And, if an employee does not have any sick and vacation leave, he or she may be required to forgo any payment to attend the medical treatment appointment.

1. SeeWard v. WCAB(2004) 69 CCC 1179 (writ denied).

2. 2019 Cal. App. LEXIS 874